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Where sheep are fed in common fields belonging to two Due in one parishes, and yean and are shorn in one parish only, agistment

though tithe is due to the tithe owner of the other parish: for the tithe of agistor might have sheared a proportionate number of ewes, and lambs and let them yean in that parish where the agistment tithe is claimed. (8) Wool due in

°) another. If the parish in which the common lies is not clearly known, the owner of the animal (2 & 3 Ed. 6. c. 13. $ 3.) must pay agistment tithe to the tithe owner of the parish wherein he lives.

In Mickleburg v. Crisp (9), where a large common extended itself into different parishes, and by custom the owners of the cattle fed thereon paid tithe of such feeding to the parson of the parish in which they respectively lived, and not to the parson of the parish in which the cattle occasionally fed; this was held a. good custom.

Tithes of commons appendant or appurtenant to farms belong Of comto the tithe owners of those parishes where the farms lie to which mons ap

pendant or they are appendant or appurtenant, being parts of them and pass

appurteing incidentally with them. (1)

nant to The rule is otherwise of commons in gross. (2)]

farms in 6. The tithes for depasturing unprofitable cattle ought to be rishes. Pa paid by the occupier of the ground, and not by the owner of the Orin gross. cattle. Bunb. 3. (3)

By whom For it is not due for the cattle, but for the produce of the to be paid. ground on which the cattle are depastured. (d)

(8) Hatfield v. Rawling, Gwm. 1030. notis. See Gwm. 1027. (9) 2 Bro. C. C. 444.

(1) Lambert v. Cumming, Bunl. R. 138. Gwm. 647. Etherington v. Hunt, Gwm. 1598. Ellis v. Fermor, Gwm. 1022. 3 Wood's Ď. 381. See ante, III. 10.

(2) Fox's case, Hil. 4. Ann. B. R. fol. 78., in Error. See Gwm. 1027.

(3) And it might be impossible to find the agistor or owner of the animal. Laurkin v. Wilde, Poph. R. 126. Freem. R. 329. Pothill v. May, 1 Bulst. R. 171. Hampton v. Wild, Cro. J. 430. See Pory v. Wright, Hardr. R. 184. contra. But this is otherwise when commons are depastured. Fisher v. Leman, Bunb. R. 3. in notis. Pory v. Wright, Hardr. R. 184.

(d) 1 Freem. 379. Fisher v. Leman, 9 Vin. Ab. 38. Bunb. 3. Willis v. Harvey, 2 Rayner, 570., where this doctrine is illustrated by the following calculation: A farmer breeds an ox, and when three years old sells him to a grazier for 77. ; the parson is not intitled to 14s. or the tenth part of the carcase, but to the tenth of the produce consumed by the animal ; he must therefore be paid thus :

Keeping.

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0 3 6 of keeping the l 3d

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In what 7. This tithe has this peculiar difficulty attending it, that it manner to cannot be taken in kind. For as it is no otherwise cut or severed be paid.

than by the mouth of the animal, together with the other nine parts, and consumed at the same time, the person to whom it is due can only receive the value of it. (4)

And it hath been said, where there is no special custom to the contrary, that if this tithe be paid for guest cattle taken in, the tenth part of the money received is payable for agistment; if for the owner's cattle, then the tithe shall be according to the value of the land, after the rate of two shillings in the pound : for that they cannot otherwise be valued, or accounted for, because the profits of the lands for which they are paid, are received by the mouths of the beasts. Wats, c. 50. (e)

But this way of estimation, according to the value, is only for convenience; for the tenth part of the produce, and not a sum of money, is undoubtedly due de jure.

And this way of valuation, according to the pound rent of the land, cannot be any certain rule, especially where profitable and unprofitable cattle are depastured together; it being impossible in such case to adjust or ascertain how much of that rate, of two shillings in the pound, the unprofitable shall pay. But in all cases, the tithe of agistment of barren and unprofitable cattle is to be paid according to the value of the keeping of each per week. And the value of the keeping of a sheep, beast, or horse, upon any particular lands, is as easily ascertained, from the usual prices given for the depasturing of such sheep, beasts, and horses per week each, in that parish or neighbourhood, whether profitable cattle are kept at the same time upon the same lands

together with them or not. (5) [ 477 ] And it frequontly happens, that the same lands pay several

tithes in the same year. As suppose an occupier of land mows

(4) This tithe is always pecuniary, and cannot be specific. It is the only tithe in the kingdom which is not specific. Chapman v. Smith, 2 Ves. R. 506.

(e) Hard. 35. 184. Bunb. l.

(5) It would seem that the improved value of the animal cannot be brought into the estimate; for this tithe is not for the animal, but for the value of the tenth part of the herbage eaten by it: where cattle are fed on oil cakes no agistment tithe is due, and their improvement cannot be estimated. Ellis v. Saul, 1 Anst. R. 342. Again, though. one shilling and sixpence, (Johnson v. Firebrace, Gwm. 660.), or two shillings in the pound (Holbeech v. Whadcocke, Hardr. 184.), of the yearly value of the land, seem to have been allowed, an annual payment of two shillings for agistment was rejected in Startup v. Dodderidge, Gwm. 587.; for the quantum of rent is not within the conusance of the tithe owner ; and this mode of payment leaves the occupier power to diminish his rent by paying so large a fine that he would thereby get next to nothing.

any of his lands in July, and pays the tithe of the hay in kind. At the proper time he turns feeding beasts upon the eddish or after-grass, which must pay the tithe of their agistment during the time they are kept upon it, according to the value or usual price of the depasturage of such beasts per week upon such eddish or after-grass, in that parish or neighbourhood. After the eddish is consumed and eaten up by these beasts, other barren and unprofitable cattle are put and kept upon the same land during the winter; others again, for the spring eatage ; which must pay the tithe of their agistment during the time they have been so kept upon that ground, according to the value of the keeping of every such beast or horse per week, upon such lands at that time and in that state. So that here the same land pays three or four different tithes in the same year; which is contrary to the doctrine generally delivered in all the old books, that the same lands shall not pay tithes twice in the same year. (g)

8. In Smith v. Roocliff, H. 1717; the barons were of opinion, Modus. that a modus of one shilling in the pound for pasture, according to the value of the land, was a void modus; as is also a modus of one shilling in the pound, according to the value of the rent. Bunb. 20.

And the like was adjudged in Harrison v. Sharpe, T. 1724. The saine being no other than payment of a part for the whole. Id. 174.

(g) But that agistment tithe is not due for after-pasturage, [where [Agistment the lands have been mown the same year, and paid tithe,] see ante, como

on afterp. 469. Green v. Austin, Yelv. 86. 2 Inst. 652. 1 Roll. Ab.641. [Batchelor pasturage.] v. Smallcombe, (H.1818.) 3 Madd. R. 12. See all the authorities collected from Chapman v. Keep in 1742, Grm. 779., to Ellis v. Saul, supra, in 1790.] For agistment tithe is not the tithe of the increase of the cattle, but the tithe of the land or herbage; which having paid tithe of the hay, shall not pay again in the same year. Bunb. 7. Therefore no agistment tithe is due for cattle fed on oil cakes, &c.; nor can this tithe be demanded on 3 Ed. 6. c. 13. $ 3., which enacts, that s6 all and every person which hath or shall have any beasts or other cattle tithable, going, feeding or depasturing in any waste or common ground, whereof the parish is not certainly known, shall pay their tithes for the increase of the said cattle, to the parson, &c. of the parish where the owner of the cattle dwelleth,” Ellis v. Saul, [Gwm. 1326.) 1 Anst. 332. [This distinction between after-math and after-pasture is accounted for by Mr. Mirehouse as follows : In the former case when each increase is cut, the soil may be said to be thereby again deteriorated, and the tithe owner less likely to have the full benefit

of the following year's produce; in the latter there is no deterio- ration, but the land is benefited by the feeding, and the succeeding

crop thereby rendered more sweet and profitable.]

IV. Wood. Whether it 1. In the case of Hicks and Woodson, H. 8 & 9 W., it is said, is titheable

that wood is not de jure tithable, because it doth not renew annude jure.

ally; and that therefore in libels in the spiritual court for wood, they allege a custom. Although it was said, that the practice of the spiritual court at this day is otherwise: but the court did not regard that; for Holt chief justice said, that they made stones, gravel, and all things tithable. L. Raym. 137. 2 Salk. 656.

And prescriptions of non decimando for tithe wood have often been allowed; particularly in the wilds of Kent and of Sussex : which seemeth to suppose that it is not due of common right, but only by custom. Gibs. 686.

But in the case of Jordan against Colley and others, E. 1720 : On a bill by the rector for tithe wood in the parish of Little Wenlocke in the county of Salop, as it had been time out of mind paid in that parish, against the defendants, as vendees of Sir William Forester: the defendants in their answer sav, that no tithe hath been paid for this coppice wood called Holebrook coppice, when felled before, and that they never heard that any tithe or modus had been paid for wood in that parish. It was insisted upon for the defendants, that tithe wood was not due of common right, and therefore that the proof lay upon the plaintiff; and that it was only founded upon a canon in bishop Stratford's time, and therefore that the defendants need not allege any prescription or custom by way of exemption : But it was answered for the plaintiff, that occupiers must always set forth an exemption. And by the court: The defendants ought to have shewn some exemption; and there is no instance, that a parish can prescribe in non decimando for tithe wood; wilds and hundreds are upon another consideration. — But note, says the reporter, although the court decreed against the defendants, yet it doth not seem to have been yet certainly determined, that tithe wood is due of common right. Bunb. 61.

But in the case of Boulton and Hursler, T. 2 G.2. The plaintiff, having libelled in the spiritual court for the title of sylva cædua, the defendant moved the court of king's bench for a prohibition : And the suggestion was, that they were timber trees, and of twenty years' growth. It was urged further, that the court might grant a prohibition even upon the face of the libel, because the demand is set forth generally, and therefore must be intended

that this tithe is due of common right; whereas the right of [ 479 ] tithe wood is only by custom. And that was the reason given

in the case of Hick v. Woodson (6), why a hundred may prescribe in a non decimando of tithe wood; for as by custom it grows due,

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by custom it may be made not due. But the court said, that this reason indeed was laid down by the judges of this court in that case; but they said, this has never been allowed for law by any of the other judges of Westminster-hall. And it certainly is not law : for tithe is as much due of sylva cædua by the law of England, as any other tithe whatsoever. And judge Reynolds said, This may evidently be shewn not to be the reason of this law in relation to hundreds ; for if it was, the same reason would prove that every private man may prescribe in a non decimando of this nature. And for this reason, and also because the defendant in the spiritual court had not alleged in his plea there that the trees were of twenty years' growth, a prohibition was denied. i Barnard. 71.

2. That wood is a prædial tithe is plain; but whether great Whether it or small, hath been a question between the parsons and vicars : is a great

or small and it hath been resolved, that if a vicar be only endowed with tithe. the small tithes, and have by reason thereof always had tithe wood, in such case it shall be accounted a small tithe; otherwise it is to be accounted amongst the great tithes. Deg. p. 2. c.1.But this doth not alter the quality of the tithe: and the vicar's having received it, may be evidence of a grant thereof having been made subsequent to the endowment, although such original grant is now lost; but it is not evidence that wood in itself is a small tithe. (7)

3. By a constitution of archbishop Winchelsea: Tithes shall Tithe of be paid of trees, if they be sold: Which Lindwood explains of sylva cædua large trees, which bear no fruit, and being cut down are not fit non lava for timber, but are used for fuel. Lind. 200.

And by a constitution of archbishop Stratford : Forasmuch as divers persons do refuse to pay tithes, which are notoriously due, of their sylva cædua, and of the wood thereof being felled, which things do not require so much labour as the fruits of the ground; and think that they lawfully refuse the same, because they have not paid tithes thereof in times past; and withal do render it doubtful what shall be deemed sylva cædua : We do therefore declare, that sylva cædua is that which, of whatsoever kind of trees it is, is kept on purpose and is mature and fit to be cut down, and which being cut down springs again from the stump or roots; and that the tithe ought to be paid thereof as a real and prædial tithe; and that the possessors of such woods [ 4807 shall by all manner of ecclesiastical censures be compelled to pay the tithe thereof when cut down, as of hay and corn. Lind. 190. 4. But, by the statute of the 45 Ed. 3. c.3. it is enacted as fol. By the sta

- tute law : (7) And it seems de jure a great tithe. Reynolds v. Greene, Gwm. 1573. 2 Bulstr. R. 27. But wood used as fuel by the farmer in his house of husbandry is a small tithe. Lagden y, Flack, 2 Hagg. Rep. 307.

Ana ber, but the bear not sold:

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